Neil Gorsuch: On Energy and Environmental Law
Transcript of Neil Gorsuch: On Energy and Environmental Law
Oil and Gas, Natural Resources, and Energy Journal
Volume 3 | Number 6
March 2018
Neil Gorsuch: On Energy and Environmental LawBenjamin Warden
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Recommended CitationBenjamin Warden, Neil Gorsuch: On Energy and Environmental Law, 3 Oil & Gas, Nat. Resources & Energy J. 1493 (2018),https://digitalcommons.law.ou.edu/onej/vol3/iss6/8
1493
ONE J Oil and Gas, Natural Resources, and Energy Journal
VOLUME 3 NUMBER 6
NEIL GORSUCH: ON ENERGY AND ENVIRONMENTAL LAW
BENJAMIN WARDEN
Table of Contents
I. Who is Neil Gorsuch? .......................................................................... 1494 A. Early Life and Education ............................................................... 1494 B. Early Legal Career ......................................................................... 1497
1. Clerkships ................................................................................... 1497 2. Private Law ................................................................................ 1498 3. Department of Justice ................................................................. 1498
C. Personal Life .................................................................................. 1498 II. Gorsuch’s Philosophies Applied to Energy and Environmental Law
Cases ....................................................................................................... 1499 A. Energy Law.................................................................................... 1500
1. Energy and Environmental Legal Institute v. Epel .................... 1500 2. Entek GRB, LLC v. Stull Ranches, LLC ..................................... 1502 3. Lexington Insurance Co. v. Precision Drilling Co, L.P. ............ 1503
B. Environmental Law ........................................................................ 1505 1. Cook v. Rockwell International Corp. ........................................ 1505 2. Scherer v. U.S. Forest Service .................................................... 1506 3. Hydro Resources Inc. v. U.S. Environmental Protection
Agency ............................................................................................ 1507 4. United States v. Magnesium ....................................................... 1508 5. Backcountry Hunters v. U.S. Forest Service .............................. 1513
Second-year student at the University of Oklahoma College of Law. Special thanks
to my roommate and friend, Sam Jimison, for his part in inspiring this article’s topic and for
his relentless work as an editor for the Journal.
Published by University of Oklahoma College of Law Digital Commons, 2018
1494 Oil and Gas, Natural Resources, and Energy Journal [Vol. 3
6. George v. United States .............................................................. 1514 7. Forest Guardians v. U.S. Fish and Wildlife Service .................. 1514
III. Gorsuch v. Scalia—On Chevron and Standing ................................. 1515 A. On Chevron.................................................................................... 1516 B. On Standing ................................................................................... 1517
IV. Conclusion ........................................................................................ 1518
The purpose of this article is to provide a comprehensive analysis into
the judicial philosophies of the newest Associate Justice of the Supreme
Court, Neil Gorsuch.1 In this way, the article may serve practitioners and
legal scholars alike with a means to predict the outcome of future Supreme
Court cases concerning energy and environmental law.
The article breaks into three main sections. Broken into three subparts,
Part I provides not only insight into Gorsuch’s pre-confirmation life but
also discussion on his: (1) Early Life and Education, (2) Early Legal Career,
and (3) Personal Life. Part II, “Gorsuch’s Philosophies Applied to Energy
and Environmental Law Cases,” overviews Gorsuch’s prominent judicial
philosophies followed by a series of Gorsuch-authored, case analyses.
Every analysis identifies the judicial philosophy Gorsuch uses and how that
philosophy affects the outcome. Divided in two subparts—“Energy Law”
and “Environmental Law”—the cases discussed fall within one of these two
categories. Finally, Part III, “Gorsuch v. Scalia—On Chevron and
Standing,” compares the two justices and details how their differences
affect the future of the court and the industry.
I. Who is Neil Gorsuch?
A. Early Life and Education
Neil McGill Gorsuch was born in Denver, Colorado on August 29,
1967.2 He attended grade school at Christ the King, a K-12 Catholic school,
where he learned the importance of moral character and service.3 Gorsuch,
according to his classmates and teachers, seemed to internalize this
1. Adam Liptak & Matt Flegenheimer, Neil Gorsuch Confirmed by Senate as Supreme
Court Justice, N.Y. TIMES, http://www.nytimes.com/2017/04/07/us/politics/neil-gorsuch-
supreme-court.html (last visited Mar. 24, 2018).
2. Neil Gorsuch, INSIDEGOV, http://supreme-court-justices.insidegov.com/l/113/Neil-
Gorsuch#References&s=ref (last visited Dec. 18, 2017).
3. Kimberly Kindy, Sari Horwitz, & William Wan, Simply stated, Gorsuch is steadfast
and surprising, WASH. POST, (Feb. 18, 2017), https://www.washingtonpost.com/
graphics/politics/gorsuch-profile/.
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importance in ways unlike many other kids his age.
4 One of Gorsuch’s
closest childhood friends, Jonathan Brody, recalled a time when this
character shined.5 Apparently, Gorsuch damaged a sleeping bag he
borrowed from Brody to use at a sleepover one night.6 Gorsuch was
distraught because he felt that his integrity was put into question.7 Brody
remembered this intense form of self-reflection, and subsequently found
himself questioning whether he took the importance of character “seriously
enough.”8
In somewhat of a contrast, Gorsuch’s parents, Anne and David, both of
whom were lawyers, taught their children from an early age the “art of
verbal sparring.”9 Family debates could ignite anywhere and everywhere—
about anything and everything.10
Gorsuch’s younger brother, J.J., said that
during these bouts their parents would encourage them to consider the
rationality of both arguments before forming their conclusions.11
This
lesson, according to J.J., taught the brothers that “the truth is often
[somewhere] in the middle.”12
No doubt, a good lesson for a young
Gorsuch destined to reach the highest court.
Anne Gorsuch was the politician of the family, successfully campaigning
for the Colorado state legislature in 1976,13
and later, to her appointment by
President Reagan as the first, female Administrator of the United States
Environmental Protection Agency.14
After her appointment, Anne moved
the kids to Washington D.C. and enrolled Gorsuch at Georgetown
Preparatory School.15
While Anne Gorsuch was busy cutting the agency’s
budget by twenty-two percent, Neil Gorsuch was championing Reagan
conservatism in every way he could.16
His stance was so well-known that
4. Id.
5. Id.
6. Id.
7. Id.
8. Id.
9. Id.
10. Id.
11. Id.
12. Id.
13. Id.
14. Sara Clarke, 10 Things You Didn’t Know About Neil Gorsuch, U.S. NEWS, (Jan. 31,
2017, 8:18 PM), https://www.usnews.com/news/national-news/articles/2017-01-31/10-
things-you-didnt-know-about-neil-gorsuch.
15. Who We Are, Alumni, Notable Alumni, GEORGETOWN PREPARATORY SCHOOL,
http://www.gprep.org/about/alumni/notable-alumni (last visited Dec. 18, 2017).
16. Kindy, supra note 3.
Published by University of Oklahoma College of Law Digital Commons, 2018
1496 Oil and Gas, Natural Resources, and Energy Journal [Vol. 3 an entry to his high school yearbook labeled him the “founder of the
‘Fascism Forever Club.’”17
Unfortunately for the Gorsuch family, during
Neil’s sophomore year, Congress grew concerned that Anne was
mismanaging a toxic waste Superfund program, and after she denied their
request for documents about the investigation, held her in contempt.18
After
only twenty-two months as administrator, Anne Gorsuch resigned.19
Though Gorsuch struggled with the news of his mother’s resignation, he
remained enrolled and later served as a United States Senate Page and
became a national champion in debating,20
until graduating in 1985.21
After high school, Gorsuch attended Columbia University where he
received a degree in political science and was inducted into Phi Beta
Kappa, a collegiate honors society.22
As a freshman, Gorsuch co-founded
“The Fed,” a newspaper inspired by two Columbia alumni, and authors of
the original Federalist Papers, John Jay and Alexander Hamilton.23
In their
first issue, Gorsuch and his counterparts explained their mission: “Our
voice will be an aggressive but considered one, one that may make you
think or may just make you angry. But it will be heard, and it will not be
shouted down.”24
After terrorizing the liberals on campus with his fiery editorial comments
at Columbia, Gorsuch traveled to Boston to begin his legal training at
Harvard Law School. While at Harvard, Gorsuch participated in the
Harvard Prison Legal Assistance Project and the Harvard Defenders
program.25
He also served as an editor of the Harvard Journal of Law and
Public Policy.26
Ken Mehlman, Gorsuch’s housemate who later became
chairman of the Republican National Committee, said that Gorsuch was
17. Id.
18. Id.
19. Marina Cassio, Predicting How a “Justice” Gorsuch Would Impact Environmental
Law, MARTEN LAW, (Apr. 3, 2017), http://www.martenlaw.com/newsletter/20170404-
justice-gorsuch-environmental-law.
20. Kindy, supra note 3.
21. Who We Are, supra note 15.
22. Clarke, supra note 14.
23. Kindy, supra note 3.
24. Id.
25. Clarke, supra note 14.
26. Neil M. Gorsuch ’91 nominated to the U.S. Supreme Court, HARV. L. TODAY, (Jan.
31, 2017) https://today.law.harvard.edu/president-trump-nominates-neil-m-gorsuch-91-u-s-
supreme-court/.
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unlike many of the other Harvard students in that he cared about others and
what they were saying.27
He graduated cum laude in 1991.28
Only upon the final leg of his education, Gorsuch begins to distinguish
himself from the other justices on the bench. After serving as a judicial
clerk for Judge David B. Sentelle on the U.S. Court of Appeals for the D.C.
Circuit, Gorsuch attended Oxford as a Marshall Scholar, performing
research on assisted suicide and euthanasia under the supervision of
acclaimed “natural law” scholar and theorist, John Finnis.29
In his
dissertation, later published as a book entitled, “The Future of Assisted
Suicide and Euthanasia,” Gorsuch advocates against assisted suicide,
opining that the “intentional taking of human life by private persons is
always wrong.”30
In Oxford, Gorsuch met and married his wife, Louise, a
champion equestrian on the Oxford riding team.31
B. Early Legal Career
1. Clerkships
As mentioned previously, Justice Gorsuch clerked for Judge David
Sentelle on the D.C. Circuit immediately after graduating from Harvard.32
After earning his doctorate at Oxford, Gorsuch returned to the States and
clerked for Supreme Court Justices Byron White and Anthony Kennedy
from 1993 to 1994.33
Justice White hired Gorsuch but retired part-way
through his clerkship.34
Interestingly, Gorsuch and White are the only
Coloradans to sit on the high court.35
Perhaps even more interesting,
because Kennedy is still active on the bench, Gorsuch is the first Justice to
decide cases alongside a Justice he previously clerked under.36
27. Kindy, supra note 3.
28. Hon. Neil Gorsuch, THE FEDERALIST SOC’Y, https://fedsoc.org/contributors/neil-
gorsuch (last visited Dec. 18, 2017).
29. J. Paul Kelleher, Neil Gorsuch’s “natural law” philosophy is a long way from
Justice Scalia’s originalism, VOX, (Mar. 20, 2017, 8:20 AM), https://www.vox.com/the-big-
idea/2017/3/20/14976926/gorsuch-natural-law-supreme-court-hearings.
30. Clarke, supra note 14.
31. Kindy, supra note 3.
32. Gorsuch ’91, supra note 26.
33. Cassio, supra note 19.
34. Ephrat Livni, Neil Gorsuch is the first US Supreme Court justice to sit on the bench
with his high court boss, QUARTZ, (Apr. 7, 2017), https://qz.com/953345/neil-gorsuch-is-the-
first-us-supreme-court-justice-to-sit-on-the-bench-with-his-high-court-boss/.
35. Cassio, supra note 19.
36. Livni, supra note 34.
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2. Private Law
Instead of joining an established firm, Gorsuch took a riskier route with a
two-year-old, firm out of Washington—Kellogg, Huber, Hansen & Todd—
working closely with one of the firm’s partners and leading trial lawyers,
Mark Hansen.37
The two became close, and Hansen later stated that the
inherent risk of losing in litigation “pushed” Gorsuch to become a better
litigator and that Gorsuch’s Midwestern way of talking gave Gorsuch a
natural edge when communicating to a jury.38
He displayed this effect
during his first trial as a lead attorney. After the jury read the verdict in
favor of Gorsuch’s client, a juror ran up to Gorsuch and compared him to
Perry Mason.39
Gorsuch became partner in 1998 and remained a partner
until leaving the firm to work for President Bush’s Justice Department in
2005.40
3. Department of Justice
Justice Gorsuch served as Principal Deputy to the Associate Attorney
General, Robert McCallum, at the Department of Justice from 2005-2006
before being tapped by Bush to become a federal appellate court judge.41
As
Principal Deputy, Gorsuch assisted in managing the Department’s civil
litigation components.42
He also handled all terror litigation arising from the
War on Terror.43
C. Personal Life
Justice Gorsuch is a family man, an outdoorsman, and a Westerner.44
He
lives in “unincorporated Boulder County, in a mountain-view community
on a property with several horses” with his wife, Louis, and his two
daughters, Emma and Belinda.45
He is a black diamond skier,46
an avid fly-
37. Kindy, supra note 3.
38. Id.
39. Id.
40. Id.
41. Gorsuch ’91, supra note 26.
42. 152 Cong. Rec. S15346 (daily ed. July 20, 2006).
43. Charlie Savage, Newly Public Emails Hint at Gorsuch’s View of Presidential
Power, N.Y. TIMES, (March 18, 2017), https://www.nytimes.com/2017/03/18/us/politics/
supreme-court-nominee-neil-gorsuch-bush-era.html.
44. Adam Liptak, In Judge Neil Gorsuch, an Echo of Scalia in Philosophy and Style,
N.Y. TIMES, (Jan. 31, 2017), https://www.nytimes.com/2017/01/31/us/politics/neil-gorsuch-
supreme-court-nominee.html.
45. Id.
46. Id.
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fisherman,
47 and hosts regular picnics for his former law clerks.
48 He is
famous for beginning an opinion with the statement, “Everyone enjoys a
trip to the mountains in the summertime.”49
In addition to all of that,
Gorsuch enjoys rowing, running, and reading.50
On the second day of
confirmation hearings, in fact, Gorsuch said that he loves good fiction, and
that “if you want to learn to write you must learn to read.”51
Until
confirmation, Gorsuch taught legal ethics at the University of Colorado
Law School.52
II. Gorsuch’s Philosophies Applied to Energy
and Environmental Law Cases
Judges use judicial philosophy to help them understand, interpret, and
rule on legal issues. Justice Gorsuch is no different. Like Scalia and many
other conservative jurists, Gorsuch is a “textualist” when interpreting
statutes and common, judge-made law53
and an “originalist” when
interpreting the U.S. Constitution.54
Textualists believe that interpretation of
law should focus solely on the written language in the law, ignoring intent
in the process.55
At a lecture delivered to the Case Western Law School in
honor of Scalia, Gorsuch declared that a textualist should:
[S]trive to apply the law as it is, focusing backward, not forward,
and looking to text, structure, and history to decide what a
reasonable reader at the time of the events in question would
have understood the law to be—not to decide cases based on
their own moral convictions or the policy consequences they
believe might serve society best.56
47. Ariane de Vogue, Meet Neil Gorsuch: A fly-fishing Scalia fan, CNN, (Feb. 1, 2017),
http://www.cnn.com/2017/01/31/politics/neil-gorsuch-antonin-scalia/index.html.
48. Liptak, supra note 44.
49. Scherer v. U.S. Forest Serv., 653 F.3d 1241, 1242 (10th Cir. 2011).
50. Gorsuch Confirmation Hearing, Day 2, Part 2, C-SPAN, https://www.c-
span.org/video/?425138-101/gorsuch-confirmation-hearing-day-2-part-2 (last visited Mar. 3,
2018).
51. Id.
52. de Vogue, supra note 47.
53. Cassio, supra note 19.
54. Kindy, supra note 3.
55. Id.
56. Honorable Neil M. Gorsuch, Of Lions and Bears, Judges and Legislators, and the
Legacy of Justice Scalia, 2016 Sumner Canary Lecture at Case Western Reserve University
School of Law (Apr. 7, 2016), in 66 CASE W. RES. L. REV. 905, 909 (2016).
Published by University of Oklahoma College of Law Digital Commons, 2018
1500 Oil and Gas, Natural Resources, and Energy Journal [Vol. 3 Scalia, a textualist in his own regard, was also a pioneer of Originalism,
explaining “[t]he Constitution that I interpret and apply is not living but
dead, or as I prefer to call it, enduring. It means today not what current
society, much less the court, thinks it ought to mean, but what it meant
when it was adopted.”57
In other words, Originalists interpret the words of
the U.S. Constitution as they were understood by its authors when they
were written.
Unlike Scalia, Gorsuch employs a third—natural law—philosophy if the
first two, textualism and originalism, are inapplicable or lacking. This
typically occurs when a law is inconclusive, and past precedent cannot
rectify the issue.58
Jurists who embrace a natural law theory believe that
judges should consider the morality of a particular law instead of
constraining themselves solely to conventional legal materials.59
Gorsuch
adopted this third approach while researching and writing his dissertation in
Oxford under the acclaimed natural law jurist, John Finnis.60
It is important
to note that the only areas of law where Gorsuch has openly advocated for
natural law is assisted suicide and euthanasia.61
Further, any environmental
or energy law case Gorsuch would face could likely be rectified by either
textualism or originalism thus taking natural law out of consideration. It is
still worth noting, however, that if it came down to it, and Gorsuch needed
to resort to other canons of decision making, it would not be surprising to
see his natural law beliefs on center stage. Additional differences between
Gorsuch and Scalia are discussed in detail in Section III.62
The following
sections contain case illustrations and analyses which showcase how these
philosophies guide Gorsuch’s decision making when he faces energy and
environmental law questions.
A. Energy Law
1. Energy and Environmental Legal Institute v. Epel
Illustration. Coloradans passed an energy mandate requiring electricity
generators to ensure that twenty percent of the electricity they sell to
57. NPR staff, Originalism: A Primer On Scalia’s Constitutional Philosophy, NPR,
(Feb. 14, 2016, 5:41 PM), https://www.npr.org/2016/02/14/466744465/originalism-a-
primer-on-scalias-constitutional-philosophy.
58. Kelleher, supra note 29.
59. Id.
60. Id.
61. Id.
62. See infra Section III: “Gorsuch v. Scalia—On Chevron and Standing.”
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Colorado consumers comes from renewable sources.
63 The Energy and
Environment Legal Institute (“EELI”), a non-profit organization that
represents coal producers, brought suit against the Commissioners of the
Colorado Public Utilities alleging that “because Colorado is a net importer
of electricity” and is part of a large electrical grid connecting several states,
the new mandate causes out-of-state producers to “lose business with out-
of-state utilities who feed their power onto the grid.”64
This harm, EELI
argued, violated one of the three branches of dormant commerce clause
jurisprudence.65
Gorsuch telegraphed the outcome in the very first sentence when he
questioned, “Can Colorado’s renewable energy mandate survive an
encounter with the most dormant doctrine in dormant commerce clause
jurisprudence?”66
The answer, of course, was yes. “Detractors find dormant
Commerce Clause doctrine absent from the Constitution’s text and
incompatible with its structure,” Gorsuch wrote, citing dissents by Justices
Antonin Scalia and Clarence Thomas.67
Continuing, he concluded,
“whatever doctrinal pigeonhole you choose to place them in68
. . . [none]
require us to strike down Colorado’s mandate . . . [f]or that mandate . . .
isn’t a price control statute, it doesn’t link prices paid in Colorado with
those paid out of state, and it does not discriminate against out-of-staters.”69
Analysis. This case is influential not just for Colorado regulatory
authorities, the renewable energy sector, and the citizens of Colorado whom
voted and passed this referendum, but also for every state which followed
Colorado’s lead by creating similar renewable initiatives. Had the mandate
been struck down, other state mandates in style similar would have been in
jeopardy.70
As such, this case is often regarded as Gorsuch’s most
significant decision in the regulatory area,71
and it is a perfect example of
63. Energy and Envtl. Legal Inst. v. Epel, 793 F.3d 1169, 1170 (10th Cir. 2015).
64. Id. at 1171.
65. Id.
66. Id. at 1170.
67. Id. at 1171.
68. This referred to the three Supreme Court precedents used for dormant commerce
clause challenges.
69. Epel, 793 F.3d at 1173.
70. Seth Jaffe, The 10th Circuit Affirms Colorado’s RPS; The Dormant Commerce
Clause Remains Dormant, FOLEY HOAG LLP (July 15, 2015), http://www.lawand
environment.com/2015/07/15/the-10th-circuit-affirms-colorados-rps-the-dormant-
commerce-clause-remains-dormant/.
71. Dan Farber, Gorsuch and the Environment: A Closer Look, LEGAL PLANET, (Mar.
20, 2017), http://legal-planet.org/2017/03/20/gorsuch-and-the-environment-a-deeper-dive/.
Published by University of Oklahoma College of Law Digital Commons, 2018
1502 Oil and Gas, Natural Resources, and Energy Journal [Vol. 3 how his judicial philosophies interact with and could affect similar laws in
the future.
Gorsuch applied Originalism when denying the existence of the dormant
commerce clause in this case. He cites to prior dissents from Justices Scalia
and Thomas, remarking that the doctrine is absent from the Constitution’s
text and is incompatible with its structure. According to Gorsuch and other
Originalists like him, the dormant commerce clause does not exist simply
because it is not found in the text of the Constitution.
If Gorsuch maintains this position, the balance of the Supreme Court on
this issue will not change. He shares the same anti-dormant-commerce-
clause belief with Scalia who was already the minority in that regard when
he was on the bench. Therefore, unless another justice were to change their
position, the dormant commerce clause is here to stay.
Supreme Court precedent is binding upon federal courts72
and in this
case, required Gorsuch to apply the dormant commerce clause test no
matter how severely it pained him to do so. He used a textualist approach to
interpret the dormant commerce clause doctrine and compare it to the
Renewable Portfolio Standard in question. He then concluded that because
the mandate was not a price controlling statute, the dormant commerce
clause could not invalidate it. This is important because it demonstrates that
no matter how badly he disagrees with a doctrine or result, if binding
precedent it present, he will apply it accordingly. This opinion also shows
that Gorsuch, much like Scalia, is not afraid of letting his opinion be known
and heard. In that regard, the bench maintains that attitude, too.
2. Entek GRB, LLC v. Stull Ranches, LLC
Illustration. Entek GRB, LLC, a federal mineral lessee, (“Lessee”) sued
Stull Ranches (“Landowner”) to secure access to a well located on surface
estate owned by Bureau of Land Management (“BLM”).73
The “dispute
arose when [Lessee] asked permission to enter [Landowner’s] surface
estate—both to develop new oil well sites” on Landowner’s property and to
gain access to “one of its existing wells located on an adjacent surface
estate owned by [BLM.]”74
Importantly, the road across Landowner’s
property was the only means of accessing BLM’s property.75
Worried that
Lessee’s presence would disturb Landowner’s current hunting operations,
72. Stare decisis, BLACK’S LAW DICTIONARY (10th ed. 2014) (defining stare decisis as:
to stand by decided cases; to uphold precedents; to maintain former adjudications).
73. Entek GRB, LLC v. Stull Ranches, LLC, 763 F.3d 1252, 1253 (10th Cir. 2014).
74. Id.
75. Id.
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Landowner refused access. Lessee sued in the District Court of Colorado.
76
The district court granted Lessee’s motion for summary judgment in part—
entitling them access to portions of Landowner’s surface to “mine certain
leases lying below,” but denying their request to cross Landowner’s surface
to service the adjacent well.77
Lessee appealed to the Tenth Circuit, wherein
Judge Gorsuch delivered Lessee full relief.78
Gorsuch held that because Landowner is the successor in interest to land
grants provided under the Stock-Raising Homestead Act of 1916 (“Act”),
Lessee enjoys the right to use the already existing road on Landowner
property to service the adjacent well, “rather than being forced to incur the
waste of having to build a new and duplicative byway.”79
To reach this
conclusion, Gorsuch interpreted the plain language of the Act and
determined that the right to “reenter and occupy” as much of the surface as
needed for purposes “reasonably incident” to the mining of mineral
beneath, encompasses Lessee’s right to access the adjacent well via
Landowner’s private road.80
Analysis. Gorsuch employed a textualist approach to this problem,
analyzing the plain language of a federal statute to hold for the operator in a
leasing agreement. Importantly, Gorsuch did not reference the eternal
policy struggle between the rights of private property owners and the
interest the government has in regulating oil and gas production. Instead, he
offered a straightforward approach to a legal issue and left all bias and
leanings to the side.
This type of decision is common for Gorsuch. Where he could address
policy, he is often silent. As the later cases indicate, Gorsuch turns to the
text before anything else and applies the law as it is instead of trying to
mold the law to parallel any social policy.
3. Lexington Insurance Co. v. Precision Drilling Co, L.P.
Illustration. An individual was injured while working on an oil rig.81
The
rig’s owner, Precision Drilling Company (“Owner”), paid the individual a
settlement for his injuries and sought indemnification from Lexington
Insurance Company (“Insurer”).82
Insurer admits that two insurance policies
76. Id.
77. Id. (emphasis added).
78. Id.
79. Id. at 1255–57.
80. Id.
81. Lexington Ins. Co. v. Precision Drilling Co., 830 F.3d 1219, 1220 (10th Cir. 2016).
82. Id.
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1504 Oil and Gas, Natural Resources, and Energy Journal [Vol. 3 were issued and paid for by Owner to cover accidents like the one here,
however, it argues that a Wyoming Anti-Indemnity Statute renders those
policies a nullity and thus any coverage was illusory.83
Insurer brought
action seeking declaratory judgment that it had no obligation to indemnify
Owner.84
The District Court of Wyoming granted summary judgment for
Insurer and Owner appealed.85
Gorsuch, writing for a Tenth Circuit majority, held for Owner and
reversed and remanded.86
He began his opinion by stating that “Wyoming
law usually prohibits those engaged in oil and gas productions from
contractually shifting to others liability for their own negligence.”87
However, as Gorsuch points out, the statute does not stop there.88
The next
sentence provides that “[t]his provision shall not affect the validity of any
insurance contract.”89
Even with this exception pointed out, Insurer argued
that legislature intended only to benefit only the company that purchases
the insurance policy, not third parties.90
Gorsuch disagreed, stating that “the
best evidence of legislative intentions lies in the language the legislature
actually adopted and the executive actually signed.”91
The statute in
question, he continues, “expressly allow[s] enforcement of any insurance
contract—and its choice to do something different than other states have
done is a choice we as judges must honor, not undo.”92
As a last effort,
Insurer claims that even if the court is not persuaded by its previous
arguments, that Tenth Circuit precedent binds the court to rule in their
favor.93
Gorsuch, again unpersuaded, showed that this precedent is
unpublished, unbinding, and factually distinguishable.94
Analysis. This case demonstrates perfectly how textual jurisprudence can
smoothly and efficiently settle litigation. The word “any” as used in the
statute plainly excludes from the Anti-Indemnity clause “any and all"
insurance contracts, according to Gorsuch. Continuing, he denounced
Insurer’s argument that the legislature intended a different result. In perfect
83. Id.
84. Id.
85. Id.
86. Id.
87. Id. (emphasis added).
88. Id.
89. Id.; see WYO. STAT. ANN. § 30–1–131(a)(iii)(B).
90. Id. (emphasis added).
91. Id. at 1221.
92. Id.
93. Id. at 1224.
94. Id.
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textual form, Gorsuch reminded the worlds that the intent of the legislature
is only required when ambiguity exists in a statute—not a problem in this
case. On this point, Gorsuch quoted a prior decision from the Federal
Circuit Court of Appeals: “‘[w]hen a statute is clear as a glass slipper and
fits without strain,’ it is our job merely to put it on the foot where it
belongs.”95
B. Environmental Law
1. Cook v. Rockwell International Corp.
Illustration. Landowners filed a class action under the Price-Anderson
Act, a federal statute providing for liability after nuclear incidents, and state
tort law against Operators of a nuclear weapons manufacturing plant to
recover for damages caused by releases of radioactive material from the
plant.96
After a verdict in favor of Landowners, the District Court denied
Operators’ motion for judgment as a matter of law and motion for new trial,
or, alternatively, for remitter of damages, and Operators appealed.97
The
Tenth Circuit Court of Appeals98
reversed and remanded, determining that
the jury instructions given by the District Court about what constitutes a
nuclear incident were too permissive. On remand, the United States District
Court for the District of Colorado99
entered judgment in Operators’ favor,
and Landowners appealed.100
This time, the issue before Gorsuch and the Tenth Circuit was whether
the Price-Anderson Act (“Act”) not only provides a federal forum when a
nuclear incident is asserted but “also preempts and [thus] precludes any
state law recovery where (as here) a nuclear incident is asserted but
ultimately unproven.”101
In his decision, Gorsuch began by detailing how
preemption may come about, the differences between various forms of
preemptions, before finally determining that the only preemption argument
at issue here is whether the Act “expressly” preempts Colorado tort law.102
Gorsuch ruled against preemption and directed the trial court to enter
95. Id. at 1220 (quoting Demko v. United States, 216 F.3d 1049, 1053 (Fed. Cir. 2000)).
96. Cook v. Rockwell Int’l Corp., 790 F.3d 1088, 1090 (10th Cir. 2015).
97. Id.
98. Id. at 1091; see Cook v. Rockwell Int’l Corp., 618 F. 3d 1127 (10th Cir. 2010).
99. Cook, 790 F.3d at 1092; see Cook v. Rockwell Int’l Corp., 13 F. Supp. 3d 1153 (D.
Colo. 2014).
100. Cook, 790 F.3d at 1092.
101. Id. (emphasis added).
102. Id.
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1506 Oil and Gas, Natural Resources, and Energy Journal [Vol. 3 judgment in favor of Landowners.
103 He reasoned that preemption should
generally be rejected when the law at issue concerns public health or safety
and found nothing in the statute which preempted state tort law.104
Notably,
Gorsuch nodded to a decision by the Fifth Circuit,105
which took the
opposite stance on the issue.
Analysis. Cook serves as an illustration of how Gorsuch approaches
preemption cases, a significant issue in environmental law because there is
so much state and federal regulation in the industry. Unsurprisingly, he
ignored what the Fifth Circuit had done and instead held that state tort law
was not preempted and that the residents could consequently recover.106
Gorsuch abstained from the application of field preemption, and looked
instead to the precise text of the Price-Anderson Act and found nowhere in
the language an expressed or even implied intent to preempt.107
Importantly, Gorsuch determined that preemption is disfavored in areas
where state law deals with public health and safety.108
This carve-out could
be particularly important for state environmental laws.109
Gorsuch differs from his Scalia slightly in this regard, given that his
predecessor’s record in the area was somewhat shaky, with forceful
opinions written both for and against the doctrine.110
He fully embraced
preemption in specific political contexts but championed states’ rights in
others.111
If Cook is an accurate example of Gorsuch’s philosophy of
preemption, he could push the Court more solidly in the states’ rights
direction.112
2. Scherer v. U.S. Forest Service
Illustration. Residents who used a recreational area sued the United
States Forest Service, alleging that charging a standard fee for the
recreational use of a recreational area violated the Federal Lands Recreation
Enhancement Act113
(“REA”).114
The United States District Court for the
District of Colorado found for Forest Service, and Residents appealed.115
103. Id. at 1112.
104. Id. at 1094–95.
105. See Gibson v. Worley Mills, Inc., 620 F.2d 567 (5th Cir. 1980).
106. Cassio, supra note 19.
107. Id.
108. Id.
109. Id.
110. Id.
111. Id.
112. Id.
113. 16 U.S.C. § 6802(f).
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Gorsuch, writing for a 10th Circuit majority, affirmed.
116 Because the
plaintiff challenged the regulation as a whole, he could win only by
showing that its every application was illegal, and that, according to
Gorsuch, was simply not true.117
Gorsuch started with the plain text of the
REA and found Congress authorized amenity fees in 2004 for parks—an
exception, he noted, to the general rule that people can “enter this country’s
great national forests free of charge.”118
He concluded that the Forest
Service was acting within its statutory limitations when authorizing the fee
because the area in issue offered amenities like a nature center and
patrolling security guards to all visitors.119
“[I]t’s just not the case that every
time the Forest Service collects the amenity fee it exceeds its statutory
authority,” and for that reason, the facial challenge fails, Gorsuch wrote.120
Analysis. This case illustrates Gorsuch’s appreciation for nature and the
environment, a trait that was never seen from Scalia.121
Gorsuch became
somewhat famous from the first line in Scherer, “Everyone enjoys a trip to
the mountains in the summertime.”122
3. Hydro Resources Inc. v. U.S. Environmental Protection Agency
Illustration. Gorsuch wrote the majority opinion on a petition for review
heard en banc by the 10th Circuit regarding an Environmental Protection
Agency decision to implement a pollution control program at a New
Mexico uranium mine.123
The case turned on whether the EPA or the New
Mexico Environment Department was responsible for issuing a necessary
permit under the Safe Drinking Water Act124
given the mine’s proposal to
use an underground injection system to extract uranium ore.125
The EPA
determined that it had jurisdiction because the property was within a
“dependent Indian community” as defined by a non-environmental criminal
law governing crimes committed in Indian country.126
114. Scherer v. U.S. Forest Serv., 653 F.3d 1241, 1242 (10th Cir. 2011).
115. Id.
116. Id. at 1245.
117. Id. (emphasis added).
118. Id. at 1242 (citing 16 U.S.C. § 6802(e)(2)).
119. Id. at 1243.
120. Id. at 1244.
121. Farber, supra note 71.
122. Scherer, 653 F.3d at 1242.
123. Hydro Res. Inc. v. EPA, 608 F.3d 1131, 1134 (10th Cir. 2010).
124. See 42 U.S.C. § 300f.
125. Hydro Resources, 608 F.3d at 1134.
126. Id.
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Gorsuch rejected the EPA’s position and found that the mine was not on
property set aside as Indian land and was not under federal
“superintendence.”127
He acknowledged the “checkerboard” pattern of the
local area, much of which was Navajo tribal land, and noted that
underground water sources “don’t follow neat land survey lines.”128
However, the EPA’s own limit on its permitting authority, modeled on a
criminal jurisdiction statute, “mandated the outcome,” he wrote.129
Analysis. This opinion showcases how Gorsuch applies case precedent
when faced with cases which are factually similar. Interestingly, Gorsuch
notes that Venetie, the Supreme Court case upon which his opinion relied,
“complicates to some degree EPA’s efforts to regulate activities affecting
underground water sources, which don’t follow neat land survey lines.”130
Then, he seemingly slighted the administration because of their decision to
adopt a criminal statute’s definition of “Indian lands” instead of
promulgating their own.131
“Crimes, after all,” Gorsuch jokes, “usually
occur on land, not in aquifers.”132
4. United States v. Magnesium
Illustration. The United States of America (“Government”) sued the
Magnesium Corporation of America (“Corporation”), a magnesium
producer, seeking an injunction and monetary penalties for violating the
Resource Conservation and Recovery Act (“RCRA”), specifically its
implementing regulations concerning disposal of mineral process wastes.133
Corporation argued that the Environmental Protection Agency (“EPA”) had
previously exempted the waste products in question from RCRA and as
such, Corporation was not in violation.134
The United States District Court
of Utah entered judgment in favor of Corporation and Government
appealed.135
Writing for the Tenth Circuit majority, Gorsuch reversed and
remanded the lower court’s decision, reasoning that because the EPA never
previously adopted a definitive interpretation of the regulation, it remained
free, even under the legal precedents on which Corporation seeks to rely, to
127. Id. (citing Alaska v. Native Vill. of Venetie Tribal Gov’t, 522 U.S. 520 (1998)).
128. Id. at 1166.
129. Id. at 1157.
130. Id. at 1166.
131. Id.
132. Id.
133. United States v. Magnesium Corp. of America, 616 F.3d 1129 (10th Cir. 2010).
134. Id. at 1130–31.
135. Id. at 1131.
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change its opinion and issue a new interpretation without providing notice
or time for comment.136
Corporation mines and processes magnesium, using what the
Corporation refers to as the “anhydrous” process.137
This process creates
dangerous wastes which Corporation attempts to curtail through various
pollution-control measures.138
Sometimes a preventive measure will create
waste in its own right—wastes that provide the foundation for the
Government’s cause of action.139
Subtitle C of RCRA requires the EPA to promulgate regulations for the
transportation, treatment, and disposal of hazardous wastes.140
In 1978,
EPA proposed regulations for implementing Subtitle C for notice and
comment.141
At first, some of these regulations were more stringent than
others, based upon whether the wastes in question were relatively “high” or
“low” in health risks.142
However, in 1980, and after proposing its rule and
receiving public comment, EPA reversed course and created a uniform
regulation without regards to a “level” of risk associated with the wastes
under this Subtitle.143
“After various regulatory investigations and
following more notice an comment, EPA issued a new rule in []1989.”144
This finalized the criteria a waste must meet to qualify for exemption from
Subtitle C.145
Applying this new criterion, EPA stated that “process
wastewater from primary magnesium production by the anhydrous
process—the category of waste at issue in this case,” were wastes likely to
qualify for the exemption carved from Subtitle C.146
A year later, EPA
submitted its Report to Congress on Special Wastes from Mineral
Processing,147
“tentatively” recommending the exclusion of many wastes,
including the waste at issue.148
In 1991, EPA, after considering comments
on the Report, issued its final determination and rule (“Final Rule”)
confirming that the waste did, in fact, qualify for exemption from Subtitle C
136. Id. at 1131.
137. Id.
138. Id.
139. Id.
140. Id. at 1131–32; see 42 U.S.C. §§ 6921-6939(f).
141. Magnesium Corp., 616 F.3d at 1132.
142. Id.
143. Id.
144. Id.
145. Id. at 1133.
146. Id. (citation omitted).
147. Id; see 55 FED.REG. 32,135 (1990).
148. Magnesium Corp., 616 F.3d at 1133.
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1510 Oil and Gas, Natural Resources, and Energy Journal [Vol. 3 and should be subjected to less stringent regulations under Subtitle D.
149
Although in doing so, EPA did not interpret the phrase “process wastewater
from primary magnesium processing by the anhydrous process.”150
Soon
after, EPA, Corporation, and the State of Utah began debating what the
phrase actually encompassed.151
Corporation, unsurprisingly, opined that
the Final Rule exempted all of the wastes produced by their facility from
Subtitle C while EPA argued that only some of the wastes were
exempted.152
This disagreement led to this suit in 2001.153
Before the district court, Government argued that five special wastes
(collectively “Complaint Wastes”) did not qualify for exemption under
Subtitle C because they were not “process wastewater from primary
magnesium processing by the anhydrous process,” as required by the Final
Rule.154
Four of the five Complaint Wastes, the Government urged, were
not “process wastewater from primary magnesium processing,” they were,
instead, “process wastewater from the processing of something else.”155
The
fifth complaint waste did not qualify as a “wastewater” as it was a dry
anode dust, according to the Government and it was instead a non-exempt
solid waste.156
Corporation, on the other hand, relied heavily on EPA’s
1990 interpretation and particular language from the Final Rule, alleging
that all of the Complaint Wastes, at least at that time and under the Final
Rule, were exempt.157
Furthermore, Government and EPA were bringing
this lawsuit in conflict of “its prior interpretation—at least without first
engaging in a period of public notice an comment.”158
This, Corporation
urged, could not be done by principles of administrative law.159
The district
court subsequently held for Corporation, reasoning that EPA’s current
interpretation—that not all five Complaint Wastes were exempted—was
inconsistent with the interpretation previously adopted, and that EPA could
not now change its mind without first providing time for public notice and
comment.160
The Government appealed.161
149. Id.
150. Id.
151. Id.
152. Id. at 1133–34.
153. Id. at 1134.
154. Id.
155. Id.
156. Id.
157. Id.
158. Id.
159. Id.
160. Id. at 1135.
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Justice Gorsuch writing for the majority began by distinguishing the
issue before the court, specifically by detailing what the parties have agreed
upon.162
The parties stipulated that the Final Rule is ambiguous (not self-
defining), that the EPA’s current interpretation that excludes all of the
Complaint Wastes is “plausible,” and that an agency’s own interpretation of
an ambiguous rule is typically given deference under Auer v. Robbins.163164
Thus leaving only one question to be decided: “[c]an EPA change its
original interpretation of the regulation without following the notice and
comment procedural requirements of the Administrative Procedure Act
(“APA”)?”165
The Tenth Circuit agreed with EPA in that the initial interpretation it
offered in its Final Rule was a tentative one, and as such, the EPA need not
comply with the APA regarding the requirements for public comment and
notice.166
The court considered holdings from the D.C. Circuit Court of
Appeals in Alaska Prof’l Hunters Ass’n v. FAA167
and Paralyzed Veterans
of America v. D.C. Arena L.P.,168
which held that the APA requires
agencies to provide notice and comment when significantly revising a
definitive interpretation of its own regulation.169
The court also pointed out
that this issue is the subject of a circuit split, with the Third, Fifth, and Sixth
Circuits adopting the D.C. Circuits’ view and the First and Ninth taking the
contrary position.170
Instead of looking to APA § 551(5) for the answer as
161. Id.
162. Id. at 1136.
163. 519 U.S. 452, 461 (1997).
164. Magnesium Corp., 616 F.3d at 1136.
165. Id.
166. Id. at 1138; see 5 U.S.C. § 553 (section 553’s notice and comment rulemaking
procedures control but are distinct from formal (or on the record) rulemaking procedures
governed by § 556).
167. 177 F.3d 1030, 1034 (D.C. Cir. 1999) (holding that an agency could not
“significantly revise” its previous “definitive interpretation of its own regulations without
first engaging in “notice and comment”).
168. 117 F.3d 579 (D.C. Cir. 1997).
169. Magnesium Corp., 616 F.3d at 1138.
170. Id. Compare SBC Inc. v. FCC, 414 F.3d 486, 498 (3d Cir. 2005) (“[I]f an agency’s
present interpretation of a regulation is a fundamental modification of a previous
interpretation, the modification can only be made in accordance with the notice and
comment requirements of the APA.”), Shell Offshore Inc. v. Babbitt, 238 F.3d 622, 629 (5th
Cir. 2001) (“[T]he APA requires an agency to provide an opportunity for notice and
comment before substantially altering a well established regulatory interpretation.”), and
Dismas Charities, Inc. v. U.S. Dep’t of Justice, 401 F.3d 666, 682 (6th Cir. 2005) (“It is true
that once an agency gives a regulation an interpretation, notice and comment will often be
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1512 Oil and Gas, Natural Resources, and Energy Journal [Vol. 3 the D.C. Circuit did, the court looked instead at § 553, which clearly states
that the notice and comment requirements don’t apply to interpretive
rules.171
This fact, the court stated, was missed in error by the Alaska
Hunters court.172
As it followed, the court disagreed with Corporation that
Alaska Hunters was supportive of their contention.173
Specifically, the court
noted that even if the Alaska Hunters decision was appropriately decided,
its precedent is unsupportive because the interpretation at issue in this case
was merely tentative not definitive as stated in Alaska Hunters.174
“Even
under the Alaska Hunters doctrine” the court noted, “before an agency
adopts a definitive interpretation of its own rule it remains free to hear new
arguments, make adjustments, and change directions all without having to
undergo notice and comment.”175
Before concluding, Gorsuch involved the
constitution, stating that “even if Congress repealed the APA tomorrow, the
Due Process Clauses of the Fifth and Fourteenth Amendments would still
prohibit the imposition of penalties without fair notice.”176
This pertains
when an agency advances its own interpretation during a civil proceeding,
however, Gorsuch noted, this potentially interesting argument was waived
because Corporation failed to raise it during argument.177
In sum, the court
held that because the EPA had not previously adopted a definitive
interpretation of its 1991 rule, and even under the case law that Corporation
urges the court to follow, EPA is at liberty to adopt without notice and
comment a reasonable interpretation of that ambiguous regulation.178
Accordingly, the district court’s judgment was vacated and remanded.179
Analysis. Many of Gorsuch’s critics complain about his tendency to
discuss in his opinions the legal arguments that were not presented at trial.
This opinion does just that. He seems to be using the case as a teaching
lesson instead of getting straight down to business. However, this tendency
required before the interpretation of that regulation can be changed.” (emphasis omitted)),
with Warder v. Shalala, 149 F.3d 73, 81–82 (1st Cir. 1998), and Erringer v. Thompson, 371
F.3d 625, 632 (9th Cir. 2004) (“[N]o notice and comment rulemaking is required to amend a
previous interpretive rule.” (emphasis omitted)).
171. Magnesium Corp., 616 F.3d at 1139; see 5 U.S.C. § 553(b)(A).
172. Magnesium Corp., 616 F.3d at 1140.
173. Id.
174. Id.
175. Id. at 1141.
176. Id. at 1144.
177. Id.
178. Id. at 1145.
179. Id.
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may be useful to him as a Justice, as his opinions will be studied and
referenced as binding precedent across the land.
A pro-agency part of this opinion is captured when Gorsuch made
considerable effort to decide the case on narrow grounds. Instead of
analyzing the argument presented by the Corporation, that the EPA must go
through a public rulemaking procedure, he concluded that the earlier EPA
interpretation was only tentative. In this way, he did not have to answer the
tough question or make law before it was necessary to do so.
5. Backcountry Hunters v. U.S. Forest Service
Illustration. Sportsmen advocacy organization (“Organization”) brought
action against the United States Forest Service (“Service”), challenging a
temporary order which permitted motorcycles, but not other motorized
vehicles, to use specific trails in a national forest.180
The United States
District Court for the District of Colorado entered judgment for the Service
and Organization appealed.181
Gorsuch, writing for the majority, held that
Organization had no standing to sue, stating that “to show standing to sue in
federal court you have to show that it’s likely, as opposed to merely
speculative that you’ve suffered an injury that can be redressed by a
favorable decision.”182
Because a victory for Organization in this case
would do nothing to help their cause of action, in fact, it would only hurt it;
they have no standing.183
Analysis. This case is important as it illustrates Gorsuch’s position on the
modern standing doctrine which Justice Scalia championed while on the
bench. Standing is crucial to environmental groups which want to challenge
a law or regulation in federal court. Without standing, they cannot be heard.
This case should be encouraging to them as Gorsuch does not appear eager
to dismiss plaintiffs for lack of standing, much unlike his predecessor was.
He is “sympathetic to outdoor enthusiasts, even when ruling against them,
and shows his Colorado roots in his writings.”184
180. Backcountry Hunters & Anglers v. U.S. Forest Serv., 612 Fed. App’x 934, 935
(10th Cir. 2015).
181. Id.
182. Id. at 936.
183. Id.
184. Holbrook Mohr & Garance Burke, Gorsuch Willing to Limit Environmental Groups
in Land Cases, U.S. NEWS (Mar. 5, 2017, 8:01 AM), https://www.usnews.com/ news/best-
states/colorado/articles/2017-03-05/gorsuch-willing-to-limit-environmental-groups-in-land-
cases.
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1514 Oil and Gas, Natural Resources, and Energy Journal [Vol. 3
6. George v. United States
Illustration. An Individual bought New Mexico property in 2005 from a
man who received it in a 1979 land exchange with the federal government,
which reserved an easement across the property to access the Gila National
Forest.185
After the Forest Service repeatedly removed the plaintiff’s fences,
she sued under the Quiet Title Act186
which waives federal sovereign
immunity to allow claims seeking “to adjudicate a disputed title to real
property in which the United States claims an interest.”187
Writing for the Tenth Circuit, Gorsuch affirmed the U.S. District Court
for the District of New Mexico’s ruling that the suit was time-barred
because the Quiet Title Act’s 12-year limitations period began to run when
the previous owner executed the land swap with the Forest Service.
“Whatever legal entitlement she might have had to build a fence across the
Forest Service’s road she lost years ago thanks to an even less permeable
barrier to entry: the statute of limitations,” he wrote.188
Analysis. Simply, this case showcases Gorsuch’s fun, almost humorous
style of writing. He can take a boring procedural question and make it
enjoyable to read.
7. Forest Guardians v. U.S. Fish and Wildlife Service
Illustration. Environmental group sued the Fish and Wildlife Service
(“FWS”), arguing that that their decision to reintroduce a captive-bred
experimental population of endangered falcons into New Mexico violated
the Administrative Procedures Act (“APA”) because it does not comply
with the Endangered Species Act (“ESA”) or the National Environmental
Policy Act (“NEPA”). 189
The United States District Court for the District of
New Mexico ruled for FWS, and Environmental group appealed. 190
The Tenth Circuit affirmed the District Court’s decision to uphold the
rule, saying the FWS had reasonably interpreted the definition of
“population” under the Endangered Species Act and had not “pre-decided”
its NEPA environmental analysis.191
185. George v. United States, 672 F.3d 942, 943 (10th Cir. 2012).
186. Id. at 944; see also 28 U.S.C.A. § 2409a.
187. George, 672 F.3d at 944.
188. Id. at 943.
189. Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692 (10th Cir. 2010).
190. Id.
191. Id. at 702–03.
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After the conclusion and affirmation, Gorsuch writes, “I am pleased to
concur in the court’s opinion . . . [and] note only two minor points.”192
First,
he disagrees with the manner by which the majority reached its conclusion,
stating that the court should not have “look[ed] beyond the four corners of
the Fish and Wildlife Service’s environmental assessment . . . .”193
Second,
Gorsuch disagreed with the majority’s analysis of two precedents, wherein,
according to the majority, the court rejected an evidentiary approach to
cases like this one.194
“As it happens,” Gorsuch illuminates, these
precedents “did not analyze or resolve the question.”195
Put simply, the
majority reached when it interpreted the prior holdings, and Gorsuch was
unashamed to bring it to everyone’s attention.
Analysis. This case serves as another example of Gorsuch’s ability to
write without shame when he feels his colleagues have overstepped their
judicial authority or when they have employed an erroneous technique for
solving legal questions. In this regard, he reflects Justice Scalia, one who is
infamously known for writing fiery dissents against the other members of
the bench.
III. Gorsuch v. Scalia—On Chevron and Standing
Gorsuch was midway down a ski slope in Colorado two years ago when
he found out Antonin Scalia was dead.196
“I immediately lost what breath I
had left,” he said in a speech two months later, “[a]nd I am not embarrassed
to admit that I couldn’t see the rest of the way down the mountain for the
tears.”197
His regard for the late Justice is unquestioned, and their friendship
is something almost all Supreme Court watchers know. But it is not because
of this fondness that President Trump decided to appoint the Coloradan;
that credit is due to the approach they take when facing questions of law.198
The “great Justice Antonin Scalia was in my mind throughout the decision
making process,” Trump explained when asked how he decided to appoint
Gorsuch.199
And if the President’s goal was to replace Scalia with someone
with similar style, he brought in the right guy. Similar they may be, there
are critical differences between them which are the focus of this section.
192. Id. at 719 (Gorsuch, J., concurring).
193. Id.
194. Id.
195. Id.
196. Liptak, supra note 44.
197. Id.
198. de Vogue, supra note 47.
199. Id.
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1516 Oil and Gas, Natural Resources, and Energy Journal [Vol. 3 A. On Chevron
The Chevron doctrine comes from the Supreme Court’s decision in
Chevron v. NRDC200
wherein the Court held that if a statute is ambiguous
on a particular issue, a court should defer to any reasonable interpretation
properly promulgated by the statute’s implementing agency.201
The theory
behind the doctrine is generally that “Congress intended to leave things up
to the agency when it left gaps in a statute,” as agencies are in the best
position to fill those gaps because of their technical expertise.202
Gorsuch,
unlike his predecessor, is strikingly opposed to the doctrine, even going so
far as to author a concurrence to his own majority opinion in order to
skewer the concept.203
In that case, he wrote:
There’s an elephant in the room with us today. We have
studiously attempted to work our way around it and even left it
unremarked. But the fact is Chevron . . . permit[s] executive
bureaucracies to swallow huge amounts of core judicial and
legislative power and concentrate federal power in a way that
seems more than a little difficult to square with the Constitution
of the framers’ design. Maybe the time has come to face the
behemoth.204
Gorsuch argued that Chevron allows “trampling [of] the constitutional
design” by allowing executive agencies to overrule a judicial declaration
without the legislative process prescribed by the constitution.205
By contrast, Scalia was a supporter of Chevron.206
Even though he
applied it in his own conservative way and bashed the prior decisions
leading up to the holding, he upheld the doctrine on several occasions and
never hinted that it should be done away with.207
This view of
200. Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984).
201. Cassio, supra note 19 (emphasis added).
202. Id.
203. See Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J.,
concurring); see also James M. McClammer, Facing the Behemoth: Gorsuch’s Implications
for Environmental Law, THE LEGAL INTELLIGENCER (Feb. 27, 2017), https://www.
law.com/thelegalintelligencer/almID/1202780042875/?slreturn=20180028221442.
204. Brizuela, 834 F.3d at 1149.
205. Id. at 1151.
206. Cassio, supra note 19.
207. Noah Feldman, Get Ready, Supreme Court Fan. Brush Up on Your Chevron
Doctrine., BLOOMBERG VIEW (Feb. 3, 2017, 11:21 AM), https://www.bloomberg.com/
view/articles/2017-02-03/get-ready-supreme-court-fans-brush-up-on-your-chevron-doctrine.
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administrative law is perhaps the biggest difference between the two
Justices and has environmentalists nervous.208
Without Chevron to give deference to agency interpretations, their ability
to apply statutory directives in a way that ensures enforcement powers is
significantly impacted.209
This, and the fact that the Trump administration is
set to disembowel the Clean Power Plan (directive created during the
Obama presidency), foreshadows a vital role Gorsuch will face as the
pending litigation makes its way to the Supreme Court. With that said,
Gorsuch maintains that even without Chevron, the courts “could and
would . . . apply the agency’s interpretation when it accords with the best
reading of the statute.”210
B. On Standing
Access to the courts is an essential and uniquely significant issue for
environmental law.211
Particularly, “the doctrine of standing is used to
decide whether or not a plaintiff is asserting the type of ‘case or
controversy’” which affords them the opportunity to come before an Article
III, federal judiciary.212
Scalia promoted the modern standing doctrine
which was often a fatal flaw to environmental groups seeking access to the
courts.213
In 2005, before becoming a Tenth Circuit judge, Gorsuch wrote an essay
published in National Review criticizing liberals for turning to the courts to
achieve their policy goals rather than their legislatures.214
He wrote:
“American liberals have become addicted to the courtroom, relying on
judges and lawyers rather than elected leaders and the ballot box . . . .”215
This attitude he shares with Scalia, though unlike his predecessor, has not
surfaced in his jurisprudence. That is, Gorsuch does not seem quite as eager
to use standing as a fatal flaw in litigation.216
In Cook v. Rockwell Int’l,
Gorsuch found standing for an owner of a state permit because the owner
had already paid for it and would have had to jump through similar hoops to
208. Eric Citron, Potential Nominee Profile: Neil Gorsuch, SCOTUSBLOG (Jan. 13,
2017, 12:53 PM), http://www.scotusblog.com/2017/01/potential-nominee-profile-neil-
gorsuch.
209. Id.
210. Brizuela, 834 F.3d at 1158 (Gorsuch, J., concurring).
211. Cassio, supra note 19.
212. Id.
213. Id.
214. Liptak, supra note 44.
215. Id.
216. Farber, supra note 71.
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1518 Oil and Gas, Natural Resources, and Energy Journal [Vol. 3 obtain a required federal permit.
217 In Backcountry Hunters & Anglers v.
U.S. Forest Serv., however, he held that a group opposed to motorized
vehicles in a park could not object to a regulation which would allow them
to enter because doing so would actually leave a less-restrictive regulation
in place and thus the group had no standing, or better put, no “case or
controversy.”218
The importance of these cases shows that Gorsuch is not
interested in using the modern standing doctrine as Scalia did.
What does this mean for the industry? If Gorsuch mirrors Scalia and
brings to the court a narrow approach on standing issues, it could mean that
environmental organizations, flush with donations after the withdrawal
from the Paris Accord and increased efforts at deregulation, would have a
harder time getting their cases heard in federal court. However, if Gorsuch
continues to demonstrate a more nuanced approach to these issues, relying
on case precedent and the law first before sending plaintiffs away for lack
of standing, courts will become more accessible.
IV. Conclusion
Justice Neil Gorsuch, the Westerner with a degree from Oxford, the
natural law theorist and black diamond skier, is eccentric, electric, and
downright brilliant. His presence on the Court to most represents the perfect
replacement of the late Justice Antonin Scalia. In many ways, he is. Not
merely because their philosophies, for the most part, align, but because of
his passion for the law and for justice and for everything that a judge stands
for.
Gorsuch’s textualist approach to solving legal questions can no longer be
seen as a predictor of traditionally conservative results.219
He is a Justice
first, and conservative second. His handling of energy and environmental
law cases depends wholly on the way the law is written and not how he
believes the law should be. That said, his general disdain for the Chevron
doctrine poses somewhat of a threat to agencies that want autonomy and
reliance afforded to them. Further, his disinterest in standing could afford
environmentalists more opportunity to have their day in court.
As the Trump administration continues to cut regulatory authorities, back
out on global climate plans, and reverse efforts made to cut down on carbon
emissions, it is not unlikely that states will try to fill the void left with their
217. Id.; see Cook, 790 F.3d 1088.
218. Farber, supra note 71; see Backcountry Hunters, 612 Fed. App’x at 934.
219. Cassio, supra note 19.
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own rules and regulations. It is equally likely that interest groups will turn
to litigation to try and keep the status quo. These are all areas in which
Justice Gorsuch will have a determining voice, a voice which will
ultimately shape the future of both industries.
Published by University of Oklahoma College of Law Digital Commons, 2018